Tag: reform

What Are the Odds That I Can Get Custody of My Daughter if I Have a Serious Criminal Record?

Without knowing more about your criminal record, I can still safely predict that having almost any kind of chronic or significant criminal record reduces your chances of being awarded custody of a child simply because having a criminal record indicates some kind of character flaw or moral failing, and good character and morals are a factor in determining parental fitness.

The kinds of crimes that have the greatest impact on the child custody analysis and award likely come as no surprise to anyone: child abuse (physical abuse, sexual abuse, psychological and emotional abuse), child neglect, physical, sexual, and emotional abuse of a spouse, violent crimes, and substance abuse.

Clearly, a history of shoplifting convictions is not as bad—from a parental fitness perspective—as a history of multiple felonious assault or child abuse or drug abuse or DUI convictions, but a criminal “lifestyle” is still one that a court would have a hard time knowing about and yet still subjecting a child to such a life with criminal parent.

If you had a long or serious criminal history, but worked long and hard and earnestly to reform (i.e., you realized the error of your ways, you regret the wrongs you did, you’ve changed for the better, and you are trying your best to make amends), that may persuade the court that your criminal history is no longer relevant or at least not as relevant as it would have been had your history indicated no remorse and no efforts to repent.

Utah Family Law, LC | | 801-466-9277

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Law from a legal assistant’s point of view, week 32: If I could redo the legal system

By Quinton Lister, legal assistant 

My boss, Eric Johnson, a divorce attorney, thought it might be a good blog post to write about what I would do if I were to design a new legal system. I think this is an interesting topic and I thought I would take a crack at it. This is a work in progress that will surely change as I develop my thinking and philosophy on the subject, but I thought you might find it interesting to know my thoughts on the subject at the outset. So, in a nutshell, here are my first thoughts: 

  1. Keep the same basic structure as found in the United States, meaning the judiciary function of the government should be a separate entity from the legislative and executive functions. The ideal should be to have an impartial third party (a judge, a jury of one’s peers, etc.) have knowledge of the law and decide the verdict in any given case based on evidence that is presented by the two sides of a conflict.
  2. Make the office of judges and perhaps other judiciary personnel elected offices. 
  3. Make all court proceedings and files public, so that the elected officials are accountable to the public (who funds the courts and the judges’ salaries, after all) for the work they do. Any sort of “sensitive” information that can be used to steal someone’s identity, or something like that, would be redacted, but the rest is open to public view.
  4. Put limits on the length of time it takes a case to work its way through the court system and generate some form of consequence to those administering in the court system if those deadlines are not met. Simplify processes and put simple but effective safeguards in place to facilitate the expeditious resolution of law suits. Provide for severe penalties for lawyers and litigants who delay a case for illegitimate reasons. 

There are several more points I am mulling over, but these are the first few that I think if applied effectively would have an immediate impact on the state of the legal system here in the United States. 

Utah Family Law, LC | | 801-466-9277   

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Law from a legal assistant’s point of view, week 30: Good Judges

By Quinton Lister, legal assistant 

In the course of my 7 months as a legal assistant to a divorce attorney in Utah, I have already shared some of my thoughts on the role of judges.  

I have come to see how much power judges have and it has given me pause to consider the impact a judge can have on the lives of so many people. It is essential for the courts of Utah (and the rest of the United States of America) to be staffed with good and competent judges. I do not claim to know all of what makes a judge good and competent, but I will elaborate on what I mean by “good” and “competent”. 

What I mean by a “good” judge is a judge that has a good heart. That does not mean a judge who is lax and lenient, unwilling to “make the punishment fit the crime.” Good judges follow the law and construe and apply it fairly and impartially.  

A “competent” judge is knowledgeable of the law and not afraid administer it. Is one who understands the rules of evidence and can be decisive when called upon to be. This is different from what I mean by “good” because competence in this sense means that the judge knows the law, what it means (and what it does not). One who is still learning and willing to learn, even while a judge.  

Utah Family Law, LC | | 801-466-9277

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Reform that reforms nothing

Commencing May 21, 2022, a new rule of the Utah Rules of Civil Procedure will be in force: Rule 100A. While I love the intention behind Rule 100A, reviewing the rule reveals it to be poorly structured, and I do not expect it to be followed strictly or even earnestly by most courts and attorneys. As a consequence, I do not expect Rule 100A to do much to expedite or otherwise improve the domestic relations case process.  

Here is the text of the rule:  

Rule 100A. Case Management of Domestic Relations Actions. 

(a) Case management tracks. All domestic relations actions, as defined in Rule 26.1, will be set for a case management conference before the court, or a case manager assigned by the court, after an answer to the action is filed. At the case management conference, the court or a case manager assigned by the court must determine into which of the following tracks the case will be placed: 

(1) Track 1: Standard Track. This category includes all cases that do not require expert witnesses or complex discovery. The court will certify a Track 1 case directly for trial. If the parties have not yet mediated, the court will order the parties to participate in good faith mediation before the trial takes place. 

(2) Track 2: Complex Discovery Track. This category includes cases with complex issues that require extraordinary discovery, such as valuation of a business. For a Track 2 case, at the case management conference the court will set a discovery schedule with input from the parties and schedule the case for a pretrial hearing. 

(3) Track 3: Significant Custody Dispute Track. This category includes cases with significant custody disputes, including custody disputes involving allegations of child abuse or domestic violence. For a Track 3 case, at the case management conference the court and parties will address: 1) whether a custody evaluation is necessary, and, if so, the form of the evaluation and appointment considerations; and 2) whether appointment of a private guardian ad litem is necessary, and if so, the scope of the appointment and apportionment of costs. The court will prepare and issue any resulting orders appointing a custody evaluator or guardian ad litem and schedule the case for either a pretrial hearing or a custody evaluation settlement conference. 

(b) The court may set additional hearings as necessary under Rules 16 or 101. Nothing in this rule prohibits a court from assigning a case to more than one track, at the court’s discretion, or otherwise managing a case differently from the above guidelines for good cause. 

My comment and critique follows below.  

    • After the answer to the complaint or petition for divorce is filed, the case will be set for a case management conference before the court, or a “case manager assigned by the court,” (as of the time this blog post is written we have no idea what “a case manager assigned by the court” is, what a “case manager” does, or who can qualify to be a “case manager”). Case management conferences usually go nowhere because nobody wants to be held to a deadline if he/she can avoid it, so nothing in Rule 100A gives me any reason to believe that a Rule 100A case management conference will be any exception to the current SOP. 
    • Moreover, because At the case management conference, the court or a case manager assigned by the court must determine on which track the case is: 
    • Track 1 cases are cases “that do not require” expert witnesses or complex discovery. Track 2 cases are cases with complex issues “that require” extraordinary discovery.  
    • How anyone would or could know whether a case requires expert witness or complex discovery at this early stage of the case the rule does not explain.  
    • While I acknowledge that many divorce cases are not complex, what careful attorney or litigant would want to forego the option of expert witnesses or extraordinary discovery without first conducting basic discovery? I wouldn’t.  
    • Track 3 cases are those that involve “significant custody disputes.” In actual practice, with rare exception, any case involving a dispute over the custody and parent-time awards involves “significant custody disputes.” Any disputed child custody case is going to qualify for Track 3. Adhering to Track 3 constitutes business as usual; it would do nothing to expedite or improve the domestic relations litigation process or experience.  
    • In my opinion, in light of A) far faster, more accurate and probative, and less expensive alternative to the conventional custody evaluation process; and B) the way custody evaluations are performed in Utah, virtually every custody evaluation is unnecessary; and  
    • Rule 100A does not articulate any criteria by which the question of whether a custody evaluation “is necessary” is resolved.  
    • As to determining “the form of the evaluation,” I have yet to have a court determine the “form” of the evaluation when I have proposed certain elements of the form and of the process to be followed. Most judges and commissioners avoid addressing the matter altogether by claiming (falsely) that the form and process of the evaluation is dictated by the evaluator (which is nonsense; while the evaluator certainly can request that the evaluation proceed under certain terms and conditions the evaluator proposes, nowhere in Utah Code of Judicial Administration Rule 4-903 (which governs the procedure for seeking and performing custody evaluations) does it give the evaluator absolute control over the “form of the evaluation”).  
    • As to “whether appointment of a private guardian ad litem is necessary,” rarely, if ever, have I experienced a guardian ad litem (GAL) adding value to the fact-finding in or the just resolution of a case. GALs are generally even less useful than custody evaluators. Where a custody evaluator and GAL are appointed, the result is wasted time and money, as well as confusion.  
    • I do not see why under tracks 2 and 3 a trial date is set and the other deadlines for the case determined by working backward from the trial date. Setting a trial date and then setting the other deadlines by working backward from the trial date appears to me to be an effective way of ensuring that the parties work more expeditiously than setting the trial date after the parties finally determine that there is nothing more to do (or claim that they need to do) pre-trial.  

I predict that Rule 100A will go down in history, as are most so-called improvement efforts of the court system, as a well-intentioned half measure, i.e., one that was neither crafted nor implemented well.  

Utah Family Law, LC | | 801-466-9277

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What can we do about the laws that are outdated about taking custody of a child?

What can we do about the laws that are outdated about taking custody of a child?

  1. In a clear and concise manner write to A) your state legislators, and B) the judges in your state explaining what law(s) you want to see changed, why the change is warranted, and what you suggest the change be.
  2. Find out when your state legislature is in session, and when it is in session, attend the public hearings on proposed new legislation, giving your legislators 1) arguments as to why they should or should not support the proposed new legislation; and 2) suggested amendments that may improve upon the proposed new legislation.
  3. Form or join or support (with volunteer time and money) a group that advocates reforming and revising child custody laws that are unfair and/or out of date. One of the best is the National Parents Organization. They are a national organization that also sponsors local chapters. You can find them at https://nationalparentsorganizat….
  4. Find and support experts on child psychology and child development who can testify in court and in legislative sessions and show judges and legislators what the outdated notions of what is best for child are and what the truly good, rigorous science shows is best.

Utah Family Law, LC | | 801-466-9277

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